Michigan Land Use Institute

Thriving Communities / News & Views / Articles from 1995 to 2012 / Supreme Court Rejects "Property Rights" Agenda

Supreme Court Rejects "Property Rights" Agenda

Rousing decisions in K&K and Crystal River cases

May 1, 1998 | By Keith Schneider
Great Lakes Bulletin News Service

In two separate decisions in March, Michigan's Supreme Court justices raised the sharp ax of their collective wisdom and took a deep slice out of a radical legal theory about "property rights" and environmental protection that had swayed some lower court judges, intimidated state regulators, and cost state taxpayers nearly $100 million.

• On March 24, the justices ruled unanimously that the Department of Natural Resources does not have to pay $5.9 million to the Joseph Kosik family and their company, K&K Construction. In 1988 the DNR had blocked the Kosiks from filling in wetlands to build a restaurant, bar, and sports complex on 82 acres they owned in Waterford Township in northern Oakland County. The family sued the DNR, claiming the state action constituted a seizure that merited just compensation for their company. Two lower courts agreed.

The Supreme Court had a different view. It said there was plenty of room on the 82 acres for the Kosiks to build and still preserve the wetlands. In handing down their ruling, the justices overturned the lower courts and simultaneously returned Michigan to the mainstream of American jurisprudence.

• Then, on March 31, the justices ruled that a DNR administrative law judge was wrong when he ordered the agency in 1990 to issue a wetlands fill permit to Robert A. Kuras, owner of the Homestead Resort in Leelanau County. The permit was for a 287-acre waterfront development including condominiums, restaurants, shops, a pool, and a golf course along the Crystal River. The Supreme Court decision also overturned two lower court rulings that favored Mr. Kuras's proposal.

The Homestead case took on national signficance when the Bush Administration tried to overrule a decision by the Chicago office of the U.S. Environmental Protection Agency, which had objected to the DNR's granting of the permit.

The Chicago officials prevailed. The internal battle, however, helped Mr. Kuras turn his case into a rallying cry for property rights advocates, among them Gov. John Engler, who twice brought the case to the attention of the White House.

The Michigan Supreme Court's decision is the final step in a court room battle waged by the Friends of the Crystal River since 1989. "This is a remarkable victory for our grass roots organization," said Barbara Weber, president of Friends of the Crystal River. "The Friends gratefully thank the environmental community for staying the course with us."

The K&K and Crystal River cases are a clear rebuke of a reactionary trend in law and politics in Michigan. In the past seven years a tiny sidestream of right-wing ideology has grown into a rampaging river that has taken Michigan on a wild, expensive, and damaging ride. Nowhere else in the nation has the movement's message -- that natural resource protections are a "seizure" of private property that merit just compensation from taxpayers -- been sewn so deeply into the garment of state actions.

John Engler campaigned in 1990 on a theme of vigilantly protecting private property rights, and after becoming governor named aides sympathetic to the radical agenda to lead the Department of Natural Resources and the Department of Environmental Quality. He also placed property rights leaders, among them Clifford W. Taylor, a judicial activist, in key court positions. In 1996, when he served on the state Appellate Court, Judge Taylor helped the far-right Mackinac Center for Public Policy prepare its manifesto on property rights that accused environmental regulations of "essentially stealing the worth of one's property." Judge Taylor recently was appointed to the Supreme Court by Gov. Engler, although he recused himself in the K&K case because he had served on the Appellate panel that heard it.

The result of this systematic placing of property rights advocates in crucial positions has paid off for development interests, many of them the governor's supporters.

• In 1995, Gov. Engler privately negotiated an agreement that led to a payment of $94.85 million in taxpayer funds to oil producers and mineral owners who had filed a lawsuit claiming their property rights had been violated when they were blocked from drilling in the Nordhouse Dunes, a magnificent coastal wilderness area near Ludington. The payout, made to some of the state Republican Party's largest donors, occurred before the Supreme Court could fully consider the case. The Supreme Court's K&K decision, which involved similar issues, strongly indicates that the Nordhouse settlement was a giveaway.

• In 1997 the DEQ reversed a previous DNR decision and awarded a Texas peat mining company a permit to tear up nearly 2,000 acres of the Minden Bog in Sanilac County. The permit is the largest ever awarded in Michigan to damage wetlands. The company had filed a $300 million lawsuit after the DNR denied the permit, demanding just compensation for the "taking" of its property. DEQ Director Russell Harding said he issued the permit because he believed the company might prevail in the state courts.

The recent Supreme Court rulings send a long-awaited message to Michigan's lawmakers, regulators, and jurists that developers no longer can mine the state treasury because they don't want to obey environmental laws. It also should quiet the clamor of property rights advocates who cry "takings" at the slightest hint that a community's well-being might limit what they can do with their land.

Most importantly, it ends the ability of state regulators to use improper lower court rulings to justify bad decisions that put natural resources and public safety at risk, and hard-earned tax dollars in the pockets of speculative developers.

Keith Schneider is a nationally-prominent environmental journalist and executive director of the Michigan Land Use Institute, a non-profit public interest and advocacy organization that he founded in 1995. Reach him at keith@mlui.org.

Michigan Land Use Institute

148 E. Front Street, Suite 301
Traverse City, MI 49684-5725
p (231) 941-6584 
e comments@mlui.org